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Courts Expand Gay Adoption in Germany, Austria

By Madeline SchiesserImpunity Watch Reporter, Europe

KARLSRUHE, Germany – In a historic step, Germany’s highest court last week handed down a ruling which will strengthen gay couples’ adoption rights. The same day, the European Court of Human Rights ruled against an Austrian policy that had denied certain adoption rights to gay couples.

Last Tuesday, High Courts in Europe handed down decisions expanding adoption rights of gay couples in Germany and Austria. (Photo Courtesy of Spiegel International)

The German Court ruled that same-sex couples have the right to adopt the adopted or step-child of his or her registered partner, a practice known as successive adoption. German laws allow for the adoption of a same-sex partner’s biological child, while a married heterosexual person can already adopt a partner’s adopted children.

Germany does not permit marriage between homosexual couples, but homosexuals have had the right to form civil partnerships since 2001. The government has been accused of procrastinating on the issue of legalizing same-sex marriage when compared with other countries such as France and the United Kingdom, which are actively addressing the issue. However, Chancellor Merkel’s spokesman said the government views the ruling “with great respect” and is in the process of considering how to comply with it.

Giving the government until June 2014 to amend the law in conformance with the ruling, the Court explained, “The exclusion of successive adoption by registered partners violates the general principle of equality.”

The Court further reasoned, “In marriage as in a civil partnership, adoption provides the child in the same way with legal security and material advantages in terms of care, support and inheritance law.”

However, the ruling stopped short of allowing same-sex couples to adopt children as a couple. Much to the frustration of Germany’s main gay rights group, under the ruling, same-sex couples are restricted to adopting the same child on an individual basis.

The case was brought before the Court by a doctor from Münster who had been denied the right to adopt her long-term partner’s adopted Bulgarian daughter.

Volker Beck, an openly gay senior lawmaker with the opposition Green Party, greeted the ruling enthusiastically as “a breakthrough in equal treatment.” He has announced that the Green Party will propose a draft law in the German Parliament to grant gay couples equal adoption rights with heterosexual couples, including tax breaks.

By contrast, an Austrian lesbian couple went all the way to the European Court of Human Rights (ECHR) to earn the right to jointly be recognized as the parents of one of the partner’s biological son.

While Austrian law allowed unmarried heterosexual couples to adopt the biological child of one’s partner, no such right was extended for homosexual couples. The Austrian government argued before the Court that the purpose of its current law were to uphold a traditional family model.

However, the ECHR ruled against the Austrian government, finding its adoption legislation discriminated based on sexual orientation. The court stated, “No convincing reasons had been advanced to show that such difference in treatment was necessary for the protection of the family or for the protection of the interests of the child.”

The court further asserted, “there is not just one way or one choice when it comes to leading one’s family or private life,” emphasizing that the government had failed to show that an LGBTI couple could not adequately provide for the needs of a child.

Martin K.I. Christensen, Co-Chair of the International Lesbian and Gay Association-Europe’s Executive Board said: “We hope that this judgment will pave the way towards the removal of the remaining legal barriers for [LGBTI] families in Europe.”

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